IN THE CASE OF:	  

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120009412 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of Combat-Related Special Compensation (CRSC) for diabetes mellitus type II.

2.  He states he was diagnosed with diabetes mellitus type II in Kuwait during 2003 and 2004.  He has been dealing with the CRSC Branch at Fort Knox, KY; however, they still request more evidence on this condition.

3.  He provides:

* DD Form 214 (Report of Separation from Active Duty) for the period ending 21 January 1979
* Three DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 January 1982, 2 February 1983, and 1 February 2004
* Separation orders from the Regular Army (RA) and amendment orders
* Discharge orders from the Army National Guard (ARNG)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 17 May 1992
* Reassignment orders in the U.S. Army Reserve (USAR) 
* ARPC Form 249-2-E (Chronological Statement of Retirement Points)
* Retirement orders
* Letters addressed to his congressman with attachments
* Congressional letter


* Department of Veterans Affairs (VA) Rating Decision
* Letter from the VA, dated 24 February 2012
* Standard Form 180 (Request Pertaining to Military Records)
* Military identification card
* Two letters from the CRSC Branch, dated 1 July 2011 and 8 March 2012

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having had prior service in the Regular Army, he enlisted in the ARNG on 23 April 1987.  He was discharged from the ARNG on 17 May 1992 and he was transferred to the USAR Control Group (Standby).

3.  He was ordered to active duty on 18 February 2003 in support of Operation Enduring Freedom.  He served in Southwest Asia from 6 April to 27 June 2003.

4.  On 5 December 2003, an informal Physical Evaluation Board (PEB) determined the applicant was physically unfit for duty for diabetes (insulin requiring) and osteoarthritis of bilateral shoulders and knees.  The PEB proceedings indicated that both conditions existed prior to service and were not permanently aggravated by service.  The PEB recommended he be permanently retired with a combined disability rating of 30%.

5.  He was retired for permanent physical disability on 1 February 2004.  At that time, he had completed 19 years, 3 months, and 10 days of qualifying service for retirement at age 60.

6.  On 15 December 2004, he applied to the CRSC Division, U.S. Army Physical Disability Agency (PDA), Alexandria, VA, but his application was declined because he had less than 20 years of active service.

7.  On 7 February 2005, the PDA denied his request for CRSC and determined his service-related disabilities of chronic adjustment disorder (50%), limited motion of arm (20%), diabetes mellitus (20%), limited flexion of knee (10%), and hypothyroidism (10%), were non-combat related.

8.  In a letter, dated 27 April 2005, the PDA informed the applicant that his application did not meet the preliminary eligibility criteria for CRSC.

9.  On 3 September 2008, the U.S. Army Human Resources Command (HRC), CRSC Branch denied the applicant's claim for CRSC based on bronchitis (60%), cataract (0%), chronic adjustment disorder (100%), diabetes (40%), hypothyroidism (10%), and limited flexion of knee (10%).

10.  His VA Rating Decision, dated 21 June 2010, indicates he was subject to compensation for diabetes mellitus type II and several other medical conditions.

11.  He submitted additional claims to the HRC CRSC Branch who denied his claim, in part, based on diabetes and diabetes mellitus type II.

Date of Denial
Description Affected
%
13 December 2010
Diabetes
40
7 February 2011
Diabetes Mellitus Type II
40
22 March 2011
Diabetes
40
25 April 2011
Diabetes Mellitus Type II
20
1 July 2011
Diabetes Mellitus Type II
20
8 March 2012
Diabetes Mellitus Type II
20
12 March 2012
Diabetes Mellitus Type II (final disapproval)
20
12.  In a letter, dated 24 February 2012, the VA informed the applicant he was rated at 100% disabled due to service-connected disabilities.

13.  In a letter, dated 15 August 2012, the HRC CRSC Branch informed the applicant that the decision on 12 March 2012 was final and he was advised to apply to the Army Review Boards Agency.

14.  CRSC, as established by Title 10, U.S. Code, section 1413a, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it were not for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) and who have disabilities 


that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disabling.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.

15.  The Under Secretary of Defense, Military Personnel Policy has provided policy guidance on the processing of CRSC appeals.  In that guidance it was stated that in order for a condition to be considered combat-related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war.

DISCUSSION AND CONCLUSIONS:

1.  The CRSC criteria are specifically for those military retirees who have combat-related disabilities.  Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to grant a military retiree CRSC.  The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.

2.  Although the evidence shows the applicant was diagnosed with diabetes mellitus type II, there is no evidence in the available record that shows his condition was sustained as a direct result of armed conflict, especially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.

3.  Without evidence to establish a direct, causal relationship to his VA-rated disabilities to war or the simulation of war, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120009412



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ABCMR Record of Proceedings (cont)                                         AR20120009412



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